Sri.K.V.Vijaya Kumar, I ADJ

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IN THE COURT OF THE I ADDL. DISTRICT JUDGE, ANANTAPUR

Present: Sri K.V.Vijaya Kumar., B.Com., LL.M.,

I Addl. District judge, Anantapur.

Monday, the 22nd day of April, 2012.

Appeal Suit No.127/2012

Between:

K.R.Subramanyam.… Appellant/Defendant No.1.

And

1. Commissioner, Anantapur Municipality, Anantapur.

2. D.Venkatesh. .... Respondents.

This Appeal is against the Decree and Judgment passed in O.S.322/2004,

Dt.8.10.2012 by the Additional Junior Civil Judge, Anantapur.

Between:

Commissioner, Anantapur Municipality, Anantapur. … Plaintiff.

And

1. K.R.Subramanyam, S/o Subbaiah Setty, aged 58 years, Hindu, Cultivation, residing at Ukkalam Street, Anantapur.

2. D.Venkatesh, S/o Sivaramaiah, aged 46 years, Hindu, Room No.3, Ground Floor, Municipal Shopping Complex, Tadipatri Road, Anantapur. … Defendants.

This Appeal is coming on 26.03.2013 for final hearing before me in the presence of Sri P.Krishna Swamy Kumar and Sri B.Ravi Prasad, Advocates for the Appellant/Defendant No.1 and of Sri Desai Subramanyam and Sri S.Baba

Fakruddin, Advocates for the respondent No.1 and Sri M.Hanumantha Reddy,

Advocate for the respondent No.2 and on perusing the material papers on record and the matter having stood over for consideration till this day, this

Court delivered the following:

JUDGMENT

This is an appeal suit filed by the defendant No.1/appellant against the

Judgment and decree passed on 8.10.2012 in O.S.322/2004 on the file of

Additional Junior Civil Judge, Anantapur in decreeing the suit of the plaintiff for

recovery of arrears of rents.

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2.The plaintiff/respondent No.1 had originally filed the suit for recovery of arrears of rent for 23 months from 1.11.2001 to 31.10.2003 and also for eviction of tenant from the suit schedule property and for costs.

3.The brief contentions of plaintiff are as follows:

The suit schedule property i.e., room No.3 is situated in ground floor,

Tadipatri road, Anantapur is the property of plaintiff/Municipality and it was let out to the first defendant on rental basis. The first defendant continued the lease. On 6.4.2000 once again the Ist defendant entered into a lease agreement with the plaintiff for a period of three years from I.2.2000 to 31.1.2003 on a monthly rental basis of Rs.2,660/-. The first defendant paid rent up to 31.10.2001. But subsequently, the defendant No.1 has failed to pay the rent. As the defendant No.1 has committed default in payment of amount he is liable to pay the amount. The Defendant no.2 is the sub tenant of D.1.

D.2 filed a suit in O.S.864/2000 on the file of Principal Junior Civil Judge,

Anantapur for permanent injunction against the plaintiff and D.1. But the said suit was dismissed observing that the second defendant is only a trespasser.

D.1 has no manner of right to sub let the portion to D.2 as the defendant No.1 is only a tenant in the said premises as he has committed default in payment of rental amounts and also for the reason that the defendant No.1 had let out the premises to the 2nd defendant, the defendant No.1 is liable to pay the arrears of rent. In spite of repeated demands and notices issued by the plaintiff, the defendant has failed to comply with the same. Therefore, the plaintiff has filed this suit for recovery of amount of Rs.61,180/- and also for eviction of defendants 1 and 2.

4.Defendant No.1 has filed a written statement with the following averments:-

The tenancy is admitted. The relationship between the plaintiff as land lord and D.1 as a tenant is also admitted. The second defendant has forcibly occupied the premises with the help of unscrupulous elements by obtaining an injunction orders in I.A.2348/2000 and the premises was handed over to the 3 defendant No.2. The second defendant gained possession of the key shutter through court fully occupied the room No.3. In s[pite of requests made by the first defendant to restore the possession of keys of shutter to the defendant

No.1, the plaintiff has failed to pay the same, therefore the defendant No.1 is not liable to pay any amount. The second defendant is only liable to pay amount as he is only in occupation of the room. The defendant No.1 has not committed any default as he is not in possession of room No.3 and he is not liable to pay the amount.

5.The brief averments of the written statement filed by the second defendant are as follows:

The defendant No.1 is not at all the original tenant of the plaintiff. This defendant is not a sub tenant of D.1. He is no way concerned with the plaintiff. In fact at the time of construction, the shop No.3 itself is in occupation of this defendant. Since the time of construction, the second defendant is in possession and enjoyment of the same with the knowledge of one and all. The plaintiff has colluded with the first defendant and created a lease deed to defeat the rights of 2nd defendant. Therefore, he filed a suit against the plaintiff, Ist defendant and others in O.S.864/2000 on the file of

Principal Junior Civil Judge's Court, Anantapur. The Hon'ble Principal Junior

Civil Judge, Anantapur has permitted the second defendant to pay the rents

and he is continuously paying the amount to the defendant by depositing it in the court account. Therefore, the question of committing default will not arise.

This defendant is not liable to vacate the room No.3 as prayed for by the plaintiff.

6.Basing on the pleadings, the following issues and additional issues were settled for trial in the lower court:

Issues

1. Whether the plaintiff is entitled to recover the suit amount as prayed for?

2. To what relief?

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Additional Issue

1. Whether the defendants are liable for eviction from suit schedule property as prayed by plaintiff?

7.During the course of trial, in the lower court P.Ws.1 and 2 were examined on behalf of the plaintiff and Exs.A.1 and A.2 documents are marked on their behalf. The defendant No.1 did not adduce any evidence and did not mark any documents. But the defendant No.2 was examined as D.W.1 and marked Exs.B.1 and B.2 documents.

8.By considering the evidence available on record and after hearing the arguments on both sides, the lower court has decreed the suit of the plaintiff against the defendants by directing the first defendant to pay the arrears of rent of Rs.34,580/- from 1.11.2001 to 31.1.2003 only for a period of 13 months and also directed the defendants 1 and 2 to vacate the suit premises within ninety days.

9.Aggrieved by the judgment and decree, the present appeal is preferred by the defendant No.1 on the following grounds only in regard to recovery of arrears of rent.:

a)The lower court had erred in passing decree against the Ist defendant to pay arrears of rent of Rs.34,580/- from 1.11.2001 to 31.1.2003;

b) The lower court ought to have dismissed the suit against this defendant and could have directed the defendant No.2 alone to pay the amount as he is in occupation of the said premises;

c)The lower Court ought to have held that the lease agreement between the plaintiff and the Ist defendant came to an end due to frustration because the second defendant has admitted to be in possession of schedule property due to interim orders passed in O.S.864/2000 by the Principal Junior

Civil Judge, Anantapur;

d)The lower court has erred in ignoring the fact that the Ist defendant is not in possession of the property and that the second defendant has been in possession of schedule property; 5

10.The learned counsel for the appellant while initiating the arguments has contended that appellant/Defendant No.1 is not liable to pay any amount to the plaintiff for the reason that the defendant No.2 had obtained an order from the court and occupied the plaint schedule premises in the year 2000 itself, therefore the defendant No.1 cannot be held liable to pay any arrears of rent. He further argued that as the defendant No.2 had taken the keys of the shutter through the orders passed by the Principal Junior Civil

Judge in O.S.864/2000, the defendant No.2 is in forcible possession of the

property, therefore the amounts have to be paid only by defendant No.2. The learned counsel for the respondent No.1/plaintiff had argued that the defendant no.1 being the tenant, having executed a lease agreement in favour of the plaintiff is under obligation to pay the rents regularly. As the defendant

No.1 has not paid any amount, the plaintiff is entitled for the recovery of the suit amount.

11.The learned counsel for the defendant No.2 had argued that the defendant No.1/appellant is not at all a tenant of the plaintiff. But the lease deed under Ex.A.2 is created for the purpose of this suit and in fact the defendant No.2 has been in occupation of the suit premises along with one

N.Subramanyam and therefore the very suit filed by the plaintiff is not at all maintainable. He further argued that defendant No.1 had filed a suit in

O.S.864/2000 on the file of Principal Junior Civil Judge, Anantapur and obtained

injunction order and he has been in possession and enjoyment of the suit premises. He further argued that he has been depositing his monthly rent towards his share in O.S.864/2000, therefore he will not have any objection even if the plaintiff recovers the amount from the amount deposited by defendant No.2 in the court account.

12.In view of the contrasting style of arguments put forth by the appellant and respondents, the following points arise for consideration:

1. Whether the defendant No.1 is the tenant of the plaintiff and he had sub let the premises to D.2?

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2. Whether the plaintiff is entitled for recovery of arrears of rent from the defendants?

3. Whether the lower court has erred in decreeing the suit?

4. To what relief:

13.Points 1 to 3::-

It is the specific contention of the plaintiff that the plaintiff is the owner/landlord of the suit schedule property which is room No.3 situated in the ground floor, Municipality, Tadipatri road, Anantapur. It is also the contention of the plaintiff that D.1 is a tenant of the plaintiff in the suit premises and the lease is being renewed from time to time. The peculiarity of the present suit is that the defendant No.1 having contested the suit by filing written statement, had subsequently failed to adduce any evidence. The contention of the plaintiff that the defendant No.1 is a tenant in the suit premises is not disputed by the defendant No.1 because in the written statement filed by Defendant No.1, it is clearly mentioned as follows:

“It is true that the suit property was let out to this defendant in the year 1985 and was extended from time to time.”

Therefore, the defendant No.1 is clearly admitting that the suit premises was let out to the defendant No.1. P.W.2 has deposed that the defendant no.1 has executed a lease agreement in favour of the plaintiff under Ex.A.2. P.W.2 is cross-examined by defendant No.1, but no suggestion was made to P.W.2 denying the validity of Ex.A.2. Therefore, it can be clearly said that the plaintiff is the landlord/Lessor and the defendant No.1 is the tenant/lessee in the suit premises. Ex.A.2 clearly establishes this fact besides the admission made by D.1. As per Ex.A.2 the tenancy period from 1.2.2000 to 31.1.2003 on monthly rental of Rs.2,660/-.

14.Whether the lease amount is paid by the defendant

No.1/appellant::-

The defendant No.1 admits that he is the tenant in the suit premises.

He had also admitted that lease agreement under Ex.A.2 was executed. The 7 monthly rental is also not disputed by the defendant No.1. As the plaintiff has filed the suit, claiming that the defendant No.1 being the tenant has committed default of the amount, the burden is on the defendant

No.1/appellant to show that he has paid the rents. It is the contention of the defendant No.1 that D.2 had forcibly occupied the suit premises and he is in possession of the property by keeping the shutter keys with him and therefore

D1 is not liable to pay any amount.

15.The entire averments of the written statement of defendant

No.1 are clearly revealing that the defendant No.1 has never paid any amount to the plaintiff towards the rent for the suit property. Unfortunately, in the present suit the defendant No.1 has not adduced any evidence to speak about any payment made by him. The written statement filed by him is clearly revealing that he has not paid any amount. However, the defendant No.1 while cross-examining P.W.1 had put a suggestion to him in regard to the date on which he vacated. P.W.1 has deposed as follows:

“It is not true to suggest that the Ist defendant vacated the schedule premises in the month of January, 2004.”

This particular suggestion made to P.W.1 is clearly revealing that the defendant No.1 continued to be the tenant of the plaintiff and he has not vacated the premises during the relevant period. As no amount is paid by the defendant No.1 towards the arrears of rent during that suit claim period, it has to be said without any hesitation that D.W.1 is under obligation to pay that amount as he is a tenant of the plaintiff.

16.Whether the defendant No.1 had sub let the premises to

defendant No.2 and defendant No.2 is in occupation of the suit

property?

The averments of the defendant No.1 in his written statement are only revealing that defendant No.2 has been in occupation of the suit property forcibly. P.W.1 also in his cross-examination has categorically deposed as follows:

8 “I do not know whether the 2 nd defendant has taken shutter

keys of schedule property i.e., O.S.864/2000 and has been operating

the schedule premises with the said key till now or not.”

P.Ws.1 and 2 in their entire evidence have categorically deposed that the defendant No.1 is the tenant and he is only liable to pay that amount.

They have also categorically deposed that they have no concern with D.1. It is the specific contention of the plaintiff that D.2 is in possession of the property as he is the sub tenant of defendant No.1. Further, the defendant No.1 has not adduced any evidence in the present suit. The defendant No.2 while he was examined as D.W.1 has contended that he has been in possession and enjoyment of the suit property. D.W.1 in his evidence has categorically admitted that he has been in possession of the suit property. What is important to be noted here is that the defendant No.2 had filed a suit in

O.S.864/2000 against the present defendant No.1 and the plaintiff/Municipality

and obtained injunction orders. It is also brought on record that the defendant

No.2 had taken possession of the suit property by taking the shutter keys of the suit property also from the court. The correct date in which the defendant

No.2 had taken the possession of the property or the keys from the court is not available on record because there are no documents to show that particular aspect clearly. As per the averments of the written statement of defendant No.1, the defendant No.2 has taken the possession of the shop and shutter keys of the shop in the year 2000 itself. But no clear documents are filed to show the actual date on which the keys of the shutter were taken by defendant No.2. There is one aspect clearly brought on record is that D.2 is in occupation of the suit property. D.W.1 also in his evidence has deposed as follows:

“I have also sought permission from the court to permit me to

deposit rents on that ground that the plaintiff is not receiving the

rents and this Hon’ble Court was pleased to permit me to deposit the

rents and accordingly I have been depositing the rents regularly in to

court.” 9 Therefore, the defendant No.2 had filed the suit in O.S.864/2000 on the file of Principal Junior Civil Judge. The defendant no.2 has also admitted that he has deposited the rents in the court. As the defendant No.2 is in occupation of the suit premises, he is also under obligation to pay the rent.

But it is brought on record that the suit filed by Defendant No.2 in

O.S.864/2000 for injunction claiming to be a tenant in the suit premises was

dismissed. The first appeal before the Hon’ble District Court and the second appeal before the Hon’ble High Court were also dismissed. The learned counsel for the respondent No.2/D.2 has admitted that the suit filed by D.2 is dismissed. It is also observed that the defendant No.2 is only a trespasser in the suit schedule property. The only point that is to be noted in the present suit is that Defendant No.2 has occupied the suit property illegally without any right during the pendency of the suit. Therefore, having been in occupation of the suit premises, it is justifiable that D.2 has to pay the rents. In the cross- examination at one point of time D.W.1 has deposed as follows:

“It is true that the Munsif Court has handed over shutter keys to me in the year 2002.”

But however, the defendant No.2 while he was examined as D.W.1 has been contending that he has been in possession of the property even since prior to the date of filing of the suit. Therefore, I sincerely believe that defendant No.2 is in occupation of the suit property. Therefore he has also got obligation to pay the rents.

17.The learned counsel for the appellant/defendant No.1 had argued that the plaintiff and defendant No.2 had colluded together and they have deprived the defendant No.1 of his right to enjoy the suit premises, thereby contract of lease is frustrated and consequently this defendant No.1/appellant is not liable to pay any rent. The learned counsel for the defendant No.1 has relied on a decision reported in 1981 An.W.R 422 between Ravuri

Jagannadha Rao Vs The Excise Superintendent, Guntur.

10 In that judgment there was an agreement between the Excise department and the petitioner therein for supply of arrack to the petitioner and to pay the rent to the Excise Department by the petitioner. In that case their lordships had observed as follows:

“If the Government failed to discharge its obligation in the

supply of arrack to the petitioner and consequently the petitioner is

not able to carry on the business due to non-supply of the arrack

there is no obligation on the part of the petitioner to pay rental for

the period for which the arrack was not supplied. The excise

Contractor is not liable to pay the rental if he is not able to carry on

the business due to the non-supply of arrack by the Government.”

The facts of that case are entirely different to the facts of the present case. Here there is no evidence to show that the plaintiff/Municipality had in any way caused any loss to the defendant No.1 nor had forcibly evicted him nor had allowed the defendant No.2 to run the shop in the premises. Under such circumstances, the plaintiff/Municipality cannot be said to have caused any frustration to defendant No.1 in regard to the enjoyment of the suit schedule property by defendant No.1. Therefore, the above said judgment cannot be made applicable to the defendant No.1.

18.There is no doubt true that defendant No.2 has occupied the suit premises that too through a court order. D.2 has contended that he has been in occupation of suit premises even since prior to filing of this suit.. As per law the agreement of lease under Ex.A.2 is showing that D.1 is the tenant of the plaintiff therefore he is under obligation and he is legally bound to pay rent to the plaintiff during the lease period. At the same time it is brought on record that defendant No.2 has been in possession of the property and he has also admitted that stutter keys are also with him. Therefore it is justifiable that D.2 shall pay the rent to the plaintiff. The learned counsel for the defendant No.2 during the course of arguments had fairly conceded that defendant No.2 only has to pay the rent as he is in occupation of it. The learned counsel for the defendant No.2 has argued that D.1 has deposited the amount in the Principal 11 Junior Civil Judge’s Court in O.S.864/2000. He has no objection for the plaintiff to receive that amount towards rent. By considering the present situation it is to be said that both D.1 and D.2 are liable to pay this amount to the plaintiff.

The plaintiff can realize that amount by taking the amount deposited by d.2 in

O.S.864/2000. Therefore, the lower court has correctly observed that the

defendants are liable to pay this amount. The lower court has clearly observed that the plaintiff is entitled to recover the amount only for lease period. Therefore, I did not find any error in the judgment of the lower court.

For the above made discussion, I hold that the defendants no.1 is the tenant of the plaintiff and the def.no.1 did not sublet the premises to D2. Accordingly point no.1 is answered. I further hold that D 1 and 2 are liable to pay that amount to the plaintiff and the plaintiff is entitled to recover the arrears of rent of Rs.34,580/- payable from 1.11.2001 to 31.1.2003. The plaintiff can realize the very amount deposited by D.2 in O.S.864/2000 on the file of Principal

Junior Civil Judge, Anantapur. Accordingly, the point No.2 is answered. I further hold that the lower court did not commit any error in decreeing the suit. Accordingly, the point No.3 is answered.

19.Point No.3::-

In the result, the appeal is dismissed with costs and the judgment of the lower Court passed by the Additional Junior Civil Judge, Anantapur in

O.S.322/2004, dt.8.10.2012 is confirmed. The plaintiff can recover the amount

from the amounts deposited by D2 in O.S.864/2000 on the file of the Prl.Junior

civil judge, Ananthapur.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 22nd day of April, 2013.

I Addl. District Judge, Anantapur.

Appendix of Evidence

-Nil-

I ADJ.

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IN THE COURT OF THE I ADDL. DISTRICT JUDGE, ANANTAPUR

Present: Sri K.V.Vijaya Kumar., B.Com., LL.M.,

I Addl. District judge, Anantapur.

Monday, the 22 nd day of April, 2012.

Appeal Suit No.124/2012

Between:

1. The A.P.Central Power Distribution Company Limited, APCPDCL, Hindupur, Represented by its Asst. Divisional Engineer (Operation), Hindupur.

2. The A.P.Central Power Distribution Company Ltd.., Anantapur, represented by the Superintending Engineer (Operation) Anantapur. … Appellants/Defendants.

And

The Anantapur District Co-Operative Marketing Society Ltd., Anantapur, represented by its Business Manager,

Kamalanagar, Anantapur. .... Respondent/Plaintiff.

This Appeal is against the Decree and Judgment passed in O.S.280/2009,

Dt.7.6.2012 by the Senior Civil Judge, Anantapur.

Between:

The Anantapur District Co-Operative Marketing Society Ltd., Anantapur, represented by its Business Manager, Kamalanagar, Anantapur. … Plaintiff.

And

1. The A.P.Central Power Distribution Company Limited, APCPDCL, Hindupur, Represented by its Asst. Divisional Engineer (Operation), Hindupur.

2. The A.P.Central Power Distribution Company Ltd.., Anantapur, represented by the Superintending Engineer (Operation) Anantapur. … Defendants.

This Appeal is coming on 01.04.2013 for final hearing before me in the presence of Sri N.Ravi Kumar Reddy, Advocate for the Appellants/Defendants and of Sri K.Gundu Rao, Advocate for plaintiff and on perusing the material papers on record and the matter having stood over for consideration till this day, this Court delivered the following:

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JUDGMENT

This is an appeal suit filed by the defendants/appellants against the

Judgment and decree passed by the learned Additional Senior Civil Judge,

Anantapur in O.S.280/2009, dt.7.6.2012 decreeing the suit of the plaintiff for recovery of money.

2.The brief averments of the plaint filed by the plaintiff/respondent are as follows:

The plaintiff is a registered society under A.P. Co-Operative Societies

Act, 1964 doing business in all agricultural requirements like Fertilizers,

Pesticides, seeds etc., besides consumer goods. The District Collector

Anantapur directed the plaintiff society to take up supply of electric capacitors to all the agriculturists in the District through the Agencies selected by P.D.

D.R.D.A and also the defendants in pursuance of Government policy to economize consumption of power. The procedure to be followed was that the

Agency/defendant to lift the stocks on credit and supply them to the farmers collect the value and repay the amount to the plaintiff. The first defendant approached the plaintiff and took delivery of stock worth of Rs.7,75,000/- raising two credit invoices with Nos.852, dt.16.5.2006 and 866, dt.29.5.2006.

The first defendant paid an amount of Rs.3,00,000/- under a debit invoice bearing No.877/dt.4.8.2006. Thus the defendant is still liable to pay an amount of Rs.4,75,200/-. This amount is left unpaid by the defendants in spite of repeated requests and demands made by the plaintiff. The defendant No.2 has issued instructions to the defendants for repayment of the dues to the plaintiff under a memo No.SE/O/ATP/F-capacitors (D.No.6965/06, dt.15.09.2006), dt.15.09.2006. The District Collector also in his letter

L.Dis.No.6881/2006 DT (W), dt.23.10.2006 directed the 2nd defendant to repay the value of the capacitors lifted by the APCPDCL to the plaintiff society.

Even then the defendants have not repaid the amount due by them.

Therefore the plaintiff is constrained to file this suit.

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3.The brief averments of the written statement filed by the defendant No.2 adopted by Defendant No.1 are as follows:

The plaintiff had not filed the terms and conditions of the G.O., or the procedure to be followed by the defendants and other private agencies for doing business. This defendant did not accept the procedure to lift stock on credit basis and repaying the amount by selling the capacitors to the farmers.

The defendant only assisted the plaintiff in selling the capacitors to the agricultural consumers. The defendant in fact had agreed only to act as an agent in selling the goods to the farmers, but the defendant is not completely liable to pay the amount to the plaintiff in regard to the capacitors supplied by the plaintiff. The defendant had issued letters to the plaintiff requesting the plaintiff to take back the stock as the farmers are not coming forward to purchase the same. Though the Higher authorities had issued many letters to the defendant, they are no way connected with the payment of amount. This defendant is not liable to pay any amount to the plaintiff. However, the plaintiff is under obligation to take back the stock supplied to the defendant.

This defendant is not liable to pay any amount. Therefore, this defendant therefore prayed for dismissal of the suit.

4.Basing on the pleadings, the following issues were settled for trial in the lower court:

1. Whether the Plaintiff Society is entitled for the suit claim?

2. To what relief?

5.On behalf of the plaintiff, P.Ws.1 and 2 are examined and Exs.A.1 to A.6 documents are marked. On behalf of the defendant, D.W.1 is examined and Exs.B.1 and B.2 documents are marked in the trial court.

6.After considering the evidence available on record and also on hearing the arguments on both sides, the lower court has come to the conclusion that the defendants are under obligation to pay the amount to the plaintiff and accordingly the suit was decreed with costs and interest at 6% p.a., 4

7.Aggrieved by the said judgment and decree, the present appeal is preferred by the defendants/appellants on the following grounds:

a)The decree and judgment passed by lower court is against law, weighty of evidence and probabilities of the case;

b)The lower court ought to have observed that capacitors were sold on credit basis only;

c)The lower court has failed to observe that the amount paid by the appellants to the respondent/plaintiff was only to the sold capacitors;

d)The lower court has failed to take into consideration the letter addressed by the defendant to the plaintiff to take back the unsold capacitors;

e)The lower court ought to have seen that the plaintiff has failed to produce the agreement entered into between the plaintiff and defendants.

Even then the lower court has erroneously decreed the suit;

f)The lower court ought to have considered the documents sent by the defendant under Exs.B.1 and B.2 and the suit ought to have been dismissed.

8.The learned counsel for the defendants/appellants had vociferously argued that in the absence of any agreement no obligation or liability can be fixed on the defendants to pay the amount to the plaintiff though the capacitors were supplied to the defendants. He further argued that the lower court has completely failed to note that the defendant had acted only as an agent of the plaintiff for selling the capacitors to the farmers and he is not doing any business to sell the capacitors. The learned counsel for the defendants/appellants had further argued that there is no obligation to the defendant to pay the amount to the plaintiff as the defendants had already addressed a letter to the plaintiff to take back his unsold capacitors, if that is to be considered no amount would be payable by the defendants to the plaintiff and consequently the suit of the plaintiff shall have to be dismissed.

9.The learned counsel for the plaintiff/respondent had argued that the defendants had lifted the stock of capacitors on credit basis by issuing 5 credit bills. Therefore the defendants have in fact purchased the capacitors from the plaintiff on credit basis. It is also admitted by the defendants that they have paid an amount of Rs.3,00,000/- to the plaintiff by issuing a debit voucher by selling the capacitors to the farmers. He further argued that the balance of amount as claimed by the plaintiff has to be repaid by the defendants to the plaintiff and therefore the lower court is right in decreeing the suit of the plaintiff.

10.In view of the arguments put forth by both sides and on considering the dispute involved between the parties in the suit, the following points arise for consideration::-

1. Whether the defendants are under obligation to pay the

amount for the stock taken by them and the plaintiff is entitled for

the suit amount?

2. Whether the lower court has erred in decreeing the suit?

3. To what relief?

11.Points 1 and 2::-

It is an admitted fact that the plaintiff is a society doing business in agricultural implements. It is the specific contention of the plaintiff that on the instructions and directions given by the District Collector, Ananathapur the plaintiff had come forward to supply capacitors through the defendants for selling it to the farmers. The defendants even in their written statement also had not completely denied the directions given by the District Collector to the plaintiff to supply the capacitors to the defendants for selling it to the farmers.

In the written statement in para No.4 the defendant has mentioned as "They

did not approach the plaintiff Society for supply to stock, but they

dumped the capacitors with the defendants." The question here is whether the plaintiff had supplied the material to the defendants and the same is received by the defendants or not. In this regard P.W.1 has categorically deposed in Para No.2 of chief examination affidavit as follows:

“As per the instructions of the district collector, the plaintiff had supplied the stock to the defendant.” 6

In para No.3 of the chief examination affidavit of the plaintiff, it is clearly mentioned as “the stocks were lifted by the defendant under the credit bills worth of Rs.7,75,200/-.” In the written statement or in the chief examination affidavit of D.W.1 there is no specific denial about supply of the stock to the defendant and issuance of credit bills. It is suggested to P.W.1 as follows:

“It is not true to say that the plaintiffs have only supplied the capacitors to the defendants.”

This particular suggestion made to P.W.1 is sufficient to show that the material was in fact supplied to the defendant. P.W.1 on the other hand had categorically deposed that the material was supplied on credit basis and two credit bills were also issued. Ex.A.1 credit bill No.852, dt.16.5.2006 and Ex.A.2 credit bill No.866, dt.29.5.2006 or the document under which the material was supplied to the defendant No.1. The defendant is not disputing the factum of supply of goods under Exs.A.1 and A.2 credit bills.

12.It is the specific contention of the defendant that they have only assisted the plaintiff for selling the capacitors to the farmers. But they have not purchased the material from the plaintiff. D.W.1 in his cross-examination has deposed as follows:

“It is true that we agreed to sell the capacitors and pay the amount to the plaintiff.”

It is clear from this admission made by D.W.1 that the defendant no.1 had in fact agreed to sell the capacitors and pay the amount to the plaintiff.

Now it is clear that the material was supplied to the defendants under Exs.A.1 and A.2 credit bills. Now it is also clear with the admission of D.W.1 that they have to sell the capacitors and pay the amounts to the plaintiff.

13.The learned counsel for the defendants/appellants had argued that there must be an agreement between the plaintiff and defendant under which there will be some terms and conditions for supply of goods and for sale 7 of goods. But the plaintiff has not chosen to file that agreement in the court; therefore the suit cannot be entertained. It is now to be noted that the defendant is contending that there is an agreement between the plaintiff and defendant. There is no doubt that the plaintiff has not filed the agreement in the court to know the terms and conditions of the policy and also in regard to the procedure to be adopted for supply of goods and sale of goods. If there is an agreement, the defendant also could have certainly filed it in the court to show that they have only assisted the plaintiff for selling the goods. Therefore in the absence of any such document it cannot be said that there is a procedure contemplated for supply of goods and sale of goods. Both the plaintiff and defendant are placed on same footing. The matter has to be decided basing on the documents available on record. Here, the plaintiff has supplied the goods to the defendant and defendant No.1 has verified the goods by issuing it under two credit bills under Exs.A.1 and A.2 for worth of

Rs.7,75,200/-.

14.P.W.1 has categorically deposed that the defendant had paid an amount of Rs.3,00,000/- by issuing a debit voucher under Ex.A.3. D.w.1 has also deposed as follows:

“We have paid rupees three lakhs to the plaintiff on the sale of capacitors supplied by the plaintiff.”

Therefore, the contention of the plaintiff that the defendant has paid an amount of Rs.3,00,000/- to the plaintiff under Ex.A.3 is now clearly brought on record and established.

15.Now the question here is whether the defendants are liable to pay the balance amount of Rs.4,75,200/- to the plaintiff. The defendant having received the stock from the plaintiff and having issued credit vouchers under

Exs.A.1 and A.2, they are under obligation to pay the same. There is no doubt the defendants are contended that they have requested the plaintiff to take back the capacitors as they were not sold. The point to be established by the defendants is whether the plaintiff is under obligation to take back the 8 capacitors and whether there is any agreement between the parties that the plaintiff has take to back the unsold capacitors. Here it is clearly brought on record that the stock issued under two credit bills. They have also paid an amount of Rs.3,00,000/- to the plaintiff by selling some capacitors. But the remaining stock is available with the defendant only. The learned counsel for the defendant at this juncture has agreed that there was some misappropriation and mismanagement had taken place and in that regard an enquiry was conducted because some Officers had sold the capacitors at higher rates than the rate fixed to it. Therefore, the plaintiff has to take back the capacitors. There is no doubt P.W.1 has also admitted as follows:

“It is true that there was an enquiry ordered over the said

supply of capacitors. It is not true to say that only because of

enquiry the Chairman of plaintiff society has resigned.”

Though it is a fact that there was an enquiry ordered, that will not affect the transaction between the plaintiff and defendant because the capacitors supplied to the defendant were under two credit bills marked as Exs.A.1 and

A.2. The defendants having sold part of the capacitors had paid the amount to the plaintiff to a tune of Rs.3,00,000/- under Ex.A.3. Because there is an obligation on the part of the defendants to pay the amount for the remaining capacitors, the Collector and as well as D.2 has addressed letters to D.1 to pay that amount. Ex.A.5 is a letter addressed by the plaintiff to the defendant to remit the balance amount for supply of capacitors. The learned counsel for the plaintiff has tried to argue that the enquiry has nothing to do with it, even though the letter was addressed, the defendant is under obligation to pay the amount. Because the capacitors were taken by the defendants under credit bills only on the directions given by the Collector at first instance. Further, as the defendants had received the stock under the credit bills, they are under obligation to pay the amount to the plaintiff. As total stock worth of

Rs.7,75,200/- was received by the defendant they are under obligation to pay that amount to the plaintiff. As the defendant has paid an amount of 9 Rs.3,00,000/- under Ex.A.3 debit voucher, the balance amount of Rs.4,75,200/- has to be paid by the defendants. Therefore, the defendants cannot escape from their liability to pay the amount to the plaintiff. Under these circumstances, the plaintiff is found entitled to receive the suit amount from the defendants. Accordingly, the point No.1 is answered.

15.As it is established by the plaintiff that the plaintiff is entitled to receive an amount of Rs.4,75,200/- from the defendants, the observation made by the lower court in regard to the liability of the defendants to pay the amount is found to be correct. Therefore, there is no error committed by the lower court in decreeing the suit. Accordingly, the point no.2 is answered.

16.Point No.3::-

In the result, the appeal is dismissed with costs by confirming the judgment passed by the lower court in O.S.280/2009, dt.7.6.2012.

Dictated to the Personal Assistant, transcribed by her, corrected and

pronounced by me in open court, this the 22nd day of April, 2013.

I Addl. District Judge, Anantapur.

Appendix of Evidence

-Nil-

I ADJ.

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